Israel-Hamas war, Day 25Civilian deaths in Gaza conflict are not automatically a war crime
Civilian shielding of its facilities is a declared Hamas military tactic. The evidence of rocket pits and weapon dumps located in, around and under mosques, schools, homes and hospitals is incontrovertible. Constant broadcasts calling upon, as well as occasional physical forcing of, the populace to protect Hamas assets with their bodies are well-documented. It is sickening that Hamas chose not to build public bomb shelters in Gaza, despite using hundreds of thousands of tons of concrete on military tunnels to initiate hostilities with Israel. The tragic Palestinian death toll does not demonstrate Israeli attacks are disproportionate to legitimate military objectives. It does display a disgusting strategic decision by Hamas to exploit civilians to shield its combatants. Its civilian deaths generate selective outrage in support of its political and economic goals. This atrocity committed by Hamas against its own Gazan population is where an honest war crime investigation would begin.
Inevitably, the United Nations Human Rights Council has expressed its condemnation of Israel and launched a war crimes inquiry. The vote on July 23 followed the usual political lines that have previously resulted in the 47-member council being critiqued for bias even by UN Secretary-General Ban Ki-moon. The resolution was supported by 29 council members (for example Organization for Islamic Co-operation states, Latin American nations, China, India), opposed by the U.S. and abstained from by 17 mostly European countries.
Even while acknowledging the council’s bias, the death tolls are impossible to equate: more than 1,300 Gazans dead compared to almost 60 Israelis. Doesn’t the unequal death toll indicate Israeli war crimes?
The concept of proportionality is fundamental to answering this question. Proportionality means that armed force used to achieve a military objective may be no more than the force needed to achieve it.
For Israel, the military objective is to end Hamas attacks on Israelis. It is not a matter of cyclic trading of bullet for bullet, rocket for rocket, through the generations. To achieve an end to rocket attacks on Israeli communities, 14,000 so far, the Israel Defense Forces (IDF) must defeat it by inflicting more damage on Hamas than vice versa. Until Hamas falls back, the battle continues.
Implicit in the rule of action proportionate to the military objective is that a military force can lawfully target enemy military assets only. Civilian infrastructure or persons are unlawful targets unless the infrastructure also serves military uses, or the persons are participating in hostilities as combatants.
In the current round of conflict, the IDF have attacked Hamas rocket caches, rocket launchers, weapons dumps, munitions factories, command and control centers and transport tunnels — all military infrastructure. The people targeted by the IDF are Hamas rocket, missile and mortar crews, gunmen and military leaders, as well as Hamas commando units — all combatants.
Nevertheless, many hapless Gazan bystanders have been tragically killed. It is in relation to the heavy civilian death toll that bitter legal controversies arise over proportionality.
